Sixty Years of Section 106: Will We Let it Be Slashed
This week marks the 60th anniversary of the National Historic Preservation Act. A bill now moving in the Senate, the Bipartisan American Affordability and Jobs Act of 2026 (S. 5653), would effectively kill Section 106, the provision that gives communities a voice when governmental decisions threaten the places that matter to them.
The bill covers many kinds of permitting, and we’re not weighing in on all of it. But its historic preservation provisions deserve our full attention.
Currently, all projects that receive federal funds, including most state large-scale construction projects, must be reviewed for damage to historic properties and important cultural landscapes. A finding of “adverse effect” does not stop the project. Rather, a process of negotiation towards alteration and mitigation must take place.
This bill, in contrast:
Lets federal agencies themselves, rather than State and Tribal historic preservation offices (as it is currently), decide whether historic resources are at risk, and whether a long list of other considerations outweigh historic preservation. The federal agency grades its own homework.
Limits what requires review, excluding projects whose only federal involvement is financial assistance. State projects will largely no longer be subject to review.
Generally treats visual, atmospheric, and audible effects as not adverse. A pipeline or transmission line could dominate a historic landscape, and the bill tells us that doesn’t count.
Removes certain transmission and pipeline activities within existing corridors from Section 106 entirely, even where historic properties could be affected.
Makes public participation a matter of agency discretion. Federal agencies won’t be beholden to the people.
Restricts the courts with a 150-day deadline on legal challenges and a general limit to who may sue. Federal agencies will almost be impossible to take to court.
And more.
The bill’s sponsors say it creates a defined timeline consultation and secures a statutory role for Tribes. A seat at the table means little when the agency can end the meeting, shrink the agenda, and limit who can object afterward. The bill also sets no comparable requirement that agencies conducting reviews maintain qualified historic preservation staff. In practice this effectively makes review something agencies do when they choose to, not something they must do.
Supporters argue that faster permitting means faster clean energy and cheaper power. Those are real goals, and preservationists share many of them. But Section 106 is not the bottleneck it is made out to be. Rhode Island’s State Historic Preservation Office has reviewed more than 1,000 federal consultation projects annually, with the vast majority found to not have adverse effects. Section 106 does not prevent America from building. It asks agencies to identify historic and cultural resources, listen to affected communities and Tribal Nations, and consider how to avoid, minimize, or mitigate harm. So, what is actually gained by cutting out that conversation, and who pays for it?
We know who pays. It is sacred sites, burial grounds, archaeological sites, historic neighborhoods, main streets, and houses of worship - places that cannot be rebuilt once they are gone. Is the government really saying their loss is an acceptable price?
We have seen this trade before. Urban renewal promised progress and efficiency, but it erased neighborhoods, main streets, and communities that could never be rebuilt. Section 106 exists because we learned that lesson the hard way, and this bill asks us to unlearn it.
The move to gut Section 106 is a concerted effort by this administration. In an October 9 letter, the National Congress of American Indians and other Tribal organizations describe an earlier move: Under an executive order, the Interior Secretary directed faster Section 106 reviews, and a draft rewrite of the Section 106 regulations headed for interagency review, all pushing toward greater agency control. The same coalition has urged Senate leaders to withdraw the Section 106 provisions in this bill, which followed with even more damaging provisions. Tribal Nations are saying no. We should be saying it with them.
It’s tempting to think this is a problem for someone else, for Tribal lands in the West or for far-off landscapes. That assumption is naive. Federal undertakings reach every state, including ours, and the precedent set here will not stay put. Preservation is not a solo or selfish pursuit. Protecting historic and cultural resources, including sacred places, regardless of how close they are to home, is our shared duty and the heart of this field. Anyone who says otherwise has misunderstood what we do.
What you can do: Contact Senators Whitehouse and Reed and ask them to oppose the Section 106 provisions in Title III as written, and to stand with the Tribal Nations who have asked Congress to withdraw them. A Senate vote is set for November 9, so do it now. Share this with your board, your members and your neighbors.
Section 106 has lasted 60 years because it works for builders, communities, and the places we share. 60 years of protection should not end quietly in a permitting bill. Let’s make sure it sees 61.
